Tri-State Water Wars received another day in court
On Monday, January 8, the “Water Wars” received another day in court: The Supreme Court of the United States. Chris Manganiello, Water Policy Director, and Kevin Jeselnik, General Counsel, were on hand to observe the one-hour argument before the full court.
For nearly three decades, Alabama, Florida and Georgia have argued over the shared waters of the Apalachicola-Chattahoochee-Flint River basins. This is the first time the Water Wars have reached the highest court of the land.
Chris and Kevin braved the bracing cold of a January morning in Washington, D.C., to witness a historic landmark in the long-running Tri-State dispute. In this case, Florida is challenging Georgia’s alleged overconsumption of water and Alabama is watching from the sidelines. In 2013, Florida filed a lawsuit against Georgia alleging that Georgia’s overuse of water in the Chattahoochee and Flint Rivers harmed the Apalachicola Bay oyster population and the local economy built upon the delicious shellfish.
Chris and Kevin were ushered into the hushed, ornate chambers of the Supreme Court along with dozens of other Georgians and Floridians who have been involved in this long dispute. It felt like the final piece of this portion of the Water Wars and everyone wanted to be there to see its conclusion. But after the lively arguments were over, observers in the courtroom realized a conclusion may be further away than we all thought.
The case wound its way up to the Supreme Court over the past few years. A six-week trial, overseen by a specially appointed attorney, was held between Halloween and Christmas in 2016. CRK had staff on-hand for much of the trial. After the states wrapped up their cases, Special Master Ralph Lancaster made his recommendation.
The Special Master found that Florida did suffer harm from low flows during a severe drought in 2012 and that Georgia has mismanaged and over-used water, particularly due to unrestrained, poorly regulated agricultural irrigation along the Flint River. But the Special Master did not believe Florida met its burden of proof necessary to show that Georgia’s actions caused Florida’s harm, or that a cap on Georgia’s water consumption would necessarily lead to more water downstream in Apalachicola Bay.
He recommended that the Supreme Court dismiss Florida’s case. Many believed that the Court would defer to his recommendation.
But during the hour-long oral arguments, the Justices surprised CRK’s General Counsel and many others in attendance by indicating a strong desire to find a solution that improved or at least didn’t make the situation worse along the Apalachicola. Justices Sonia Sotomayor, Ruth Bader Ginsberg and Stephen Breyer sharply questioned Florida, Georgia and U.S. attorneys, earnestly seeking an answer to the question: what could the Court do to provide relief to Florida without crippling Georgia?
Different justices repeated the same refrain: Wouldn’t a consumption cap in Georgia logically mean more water would flow down to Florida? While it seems like gravity means the obvious answer would be yes, the Georgia and U.S. attorneys for the U.S. government emphasized the role the U.S. Army Corps of Engineers five federal reservoir projects play in this complicated water system: While less water consumed in Georgia may put more water back in the river, it is possible for the Corps to hold that water back in one or more of its reservoirs on the Chattahoochee instead of releasing down the river to the Florida line.
But that answer only led to a new line of lively, sometimes exasperated questions from the Court: Why wasn’t the Corps a part to this action? No attorney provided the Justices a satisfactory answer. The Corps operates dams on the river system pursuant to its authority granted by Congress. Justices wanted to know if the Corps would change its operations if the Court made a ruling regulating water use in Georgia. The Corps said it could make changes recommended by the Court, but it did not have to.
Florida hopes this statement is enough to encourage the Court to issue a decision limiting Georgia’s water use, under the assumption that the Corps will change its operations to ensure that those water savings make it down to the Apalachicola. Georgia continued to argue that even significant water savings in Georgia would not necessarily reach Florida.
The final issue for the Court to consider was just how much more water Florida needed to protect the Apalachicola Bay. This was one of the major snags that led the Special Master to recommend dismissal of the case. Justices Sotomayor and Elena Kagan pushed Florida to pin down how much water needed to be saved in Georgia, but the Florida counsel danced around the question. Georgia’s attorney seized on this to argue that Florida could not quantify just how much more water was needed to keep the Bay healthy.
But many of the Justices showed a willingness to be flexible and a desire to find some compromise that would provide Florida relief. That willingness indicated that this case may not be as close to its end as we thought before Monday. The Court has a number of options at its disposal, and Monday’s oral arguments didn’t clarify in which direction it may go. In the end, the Justices may still adopt the Special Master’s recommendation and dismiss Florida’s case. Or the Court may send the case back to him for additional rulings on whether a consumption cap should be placed on Georgia, and if the benefits of a cap to Florida are worth the costs Georgia may incur.
CRK estimates the Justice’s opinion will be published in the next 3 to 4 months. CRK continues to advocate a cooperative resolution to this issue, one that brings all three states and the Corps to the table to form a transparent interstate commission that works to equitably share the waters of the Chattahoochee, Flint and Apalachicola Rivers.
Call to Action: Help Restore Trust in State Government
Please contact your senator today and ask for their support of House Resolution 158. This resolution will allow a vote on a constitutional amendment to dedicate fees for their intended purpose.
While Georgia legislators adopt laws creating fees to fund state programs, current law does not allow legislators to “dedicate” the fees to their intended funds. Instead, the fees often go to the state’s general fund and are spent elsewhere. Almost 40% of the $469 million collected to round up scrap tires and clean up contaminated properties has been misappropriated. We need to empower our legislators so they can require that fees collected must be spent on the programs they are meant to fund.
Support CRK in 2018
With the continued threats our river faces, CRK needs your support now more than ever. Please pledge your support for North Georgia’s most valuable natural resource by becoming a CRK event sponsor. In addition to receiving the satisfaction of knowing that your financial commitment will have a positive impact on the lives of the nearly 4 million people who depend on the Chattahoochee, you will receive a myriad of benefits for what you’re doing to help save our precious river.
CRK has been selected to participate in Sugarlands Distilling Company‘s Year of Giving. The mission of the MoonShare Year of Giving program is to provide monetary donations to six elected nonprofits, awarding each organization $10,000. Second round of voting is January 11 – 21, 2018. You can vote once every 24 hours, per email address. VOTE NOW!
Blue Heron Nature Preserve partners with CRK’s Neighborhood Water Watch (NWW) to monitor four key NWW sites on Mill and Nancy Creeks. Cooperation and coordination are key components of keeping watch over all our waters! To learn more about their mission to engage, protect, provide and advocate for the Preserve- click here.
Catch up with CRK by reading our Fall 2017 RiverCHAT Newsletter edition! Read the full newsletter, click here!
Highlights include: Atlanta’s drought, a feature on Mary Anne Lanier, our new partnership with Atlanta Public Schools, groundbreaking improvements to water quality at Pilgrim’s Pride in Gainesville and more!